Himachal Pradesh High Court
Mrs. Vidya Stokes vs State Of Himachal Pradesh And Anr. on 21 October, 1993
Equivalent citations: 1994CRILJ1833
JUDGMENT Devinder Gupta, J.
1. The petitioner has approached this Court seeking to quash First Information Reports as also investigations conducted and action taken thereupon, involving her therein, in connection with her alleged conduct as a General Secretary of the Himachal Pradesh Council for Chilf Welfare.
2. The petitioner is the widow of late Mr. Lal Chand Stokes, one of the three sons of Mr. Samuel Stokes, a pioneer in bringing apple revolution in Himachal Pradesh. It is her case that after the death of her husband, who was the member of Legislative Assembly from Teog, she in the year 1972 came in active politics. She and her husband as Congress candidates were always opposed from this constituency by one Mehar Singh Chauhan, who contested the election either as an independent candidate or a candidate of Bhartiya Janta Party (Bhartiya Jan Sangh) or as Janta Dal activist. It is alleged that Mehar Singh Chauhan belongs to Balsan area falling in Theog Assembly constituency and is married to the sister of respondent No. 2, who is the Director General of Police, Himachal Pradesh. Because of his close relations, both Mehar Singh Chauhan and respondent No. 2 nourished great grudge, feelings of enmity and hostility towards the petitioner. Mehar Singh Chauhan and respondent No. 2 had always worked against her and her husband.
3. After highlighting numerous instances of hostile attitude, it is alleged by the petitioner that in the year 1988, respondent No. 2 was transferred against his wishes to the centre. He was most unhappy in having left Himachal Pradesh. During this period, he remained posted in Jammu and Kashmir. With the change of Government, he managed to come back to Himachal Pradesh in the month of April 1990 and on joining he was appointed to the key post in the Police Department as the Director Genera. Respondent No. 2 always had the feelings that his transfer to Central Government was on account of the petitioner's wishes, as a result of this imaginary feeling, respondent No. 2 and other members of his family started harbouring even more feelings of enmity particularly after 1988. After coming back to Himachal Pradesh and joining as Director General of Police, Himachal Pradesh, respondent No. 2 started harassing the petitioner with the support of Bhartiya Janta Party Government, which was in power in Himachal Pradesh.
4. The petitioner claims that being in active politics for the last nearly 20 years, she has held various political positions, being a member of Congress-1. In addition, she has been associated at the State, National and at International level in honorary capacity with number of Social, Welfare, Sports and Horticultural activities. It is alleged that she is the founder President of Samaj Uthan Samiti Mahasu, being a Samiti dealing with welfare of women and children from 1962 to 1988; Life Member, H. P. Red Cross Society and remained Vice-President for many years; Member, Indian Red Cross Society at national level; President, H. P. Women's Hockey Federation since its inception about 30 years back; Chairman, H. P. State Cooperative Union for 4 years; Chairman, H. P. State Krishak Samaj since its inception and Vice-Chairman, All India Framers Forum for the last 8 years; Vice-Chairman, H. P. Horticulture Produce and Marketing Corporation for five years; General Secretary, National Women's Hockey Federation for two terms of 4 years each; President, Indian Women's Hockey Federation for 4 years; Adminstrator, Shivaji Stadium during Asiad 1982; Vice President, Indian Olympic Association, Member of Jury - Asian Games at Beijing and Seoul; Vice President, Asian Hockey Federation of International Hockey; Member, National Horticultural Board; Member High Powered Committee of Sports Authority of India; Member Indian Council for Child Welfare - national level; Member, H. P. Vidhan Sabhafrom 1974-77, 1980-85, 1985-90, 1990-; Minister of State, Rural Development, H. P. for one year and Speaker, H. P. Vidhan Sabhafrom 1985-90.
5. It is further alleged that somewhere in the month of June, 1990, the petitioner supported the farmers agitation, which was sought to be suppressed by the Government, by having resort to coersive methods, under the supervision of respondent No. 2. There was a police firing resulting in three deaths in Kotgarh town and injuries to 4-5. Even the women folk in village Bhekalti were beaten by the police during the agitation and they were even manhandled. Issue was raised by the petitioner in the Vidhan Sabha of such excessive use of force on the part of Police and its top officers, which further increased the feelings of resentment of respondent No. 2 towards the petitioner, particularly because of the petitioner having raised a demand of judicial enquiry by a High Court Judge into the police excesses.
6. In the aforementioned background, it is alleged that the petitioner has been victimised, as a result of conspiracy of respondent No. 2, to take revenge and to harass her with the help of his subordinates. Originally, in the petition challenge was made with respect to F.I.R. Nos. 5/90, 6/90, 7/90, 8/90 and 9/90 registered at Police Station, Anti-corruption Zone, Shimla on the ground that the same were lodged with a view to malign and defame the petitioner and to adversely affect her political image. It has been alleged that the lodging of FIR's is because of the mala fides on the part of respondent No. 2 and also that the allegations made therein, if they are taken at their face value and accepted in the entirety ' do not even prima facie constitute any offence or making out a case against her. In case, on the basis of F.I.Rs any investigation therein is conducted, the same would be an abuse of the process of the Court. During the pendency of the petition, F. I. Rs. Nos. 10 and 11/90 were also registered at Police Station, Anti Corruption Zone, Shimla and FIR No. 38/91 at Police Station (East), Shimla, which have also been challenged on the same and similar grounds.
7. After narrating the allegations contained in the FIRs, it is alleged that the facts stated therein pertain to the petitioner's work and conduct as the General Secretary of the Himachal Pradesh Council of Child Welfare with which she has remained engaged for the last several years. She has held the office of the General Secretary from 1977-78 to 31-3-1991 by election. The petitioner was working as the General Secretary in an honorary capacity having a long and distinguished record of public service and agreed to serve on humanitarian and social cause for child welfare by devoting a lot of her time to the activities of the council voluntarily without any compensation, remuneration or expectation or any such reward.
8. The council is headed by the Governor of Himachal Pradesh as its President, who also presides over the meetings of the General body, which is the supreme body of the Council. The management of the affairs of the Council vests in the Executive Committee, which is the governing body, which too is presided over by the Governor and the Chief Minister. By virtue of Clause 16 of the Memorandum of Association of the Council, Executive Committee is empowered to set up a Standing Committee, which consists of Secretary (Welfare), Secretary (Finance), Director Social and Women's Welfare of Government of Himachal Pradesh with General Secretary of the Council as its ex-officio Secretary.
9. It is alleged that before lodging the First Information Reports, no effort was made for conducting an inquiry. Cases were got registered without examining the records and without making any thorough inquiry. Registration of the First Information Reports has jeopardised the entire career of the petitioner, as a result of which the petitioner had been compelled to approach this Court seeking to quash the F.I.Rs. as also the investigation thereunder.
10. In order to emphasise and highlight the allegations levelled against respondent No. 2 in harbouring a private grudge, the petitioner has also placed reliance on some of the documents, one of which is a copy of plaint Annexure P-10. A Civil Suit has been filed by respondent No. 2 against the petitioner and the two leading Newspapers i.e. Times of India and Indian Express for recovery of Rs. 2,25,000/- as damages. The suit is based on the publication of statements in the two Newspapers, alleged by respondent No. 2 to have been made by the petitioner with malice. It is alleged by respondent No. 2 that the petitioner has been harassing her in a number of ways. She as a Speaker of Himachal Pradesh Vidhan Sabha abused her position and got him transferred from Himachal Pradesh. Because of transfer, respondent No. 2 had suffered mental strain, torture, loss of reputation and had to incur additional expenditure in maintaining two establishments. It is also alleged by respondent No. 2 that the petitioner made false and baseless statements against him, which were published in the Newspapers, which have adversely affected and lowered down his image and reputation.
11. Respondents have contested the petition. Respondent No. 2 in his reply, though has not disputed his relation with Shri Mehar Singh Chauhan, has denied that he ever took part in the polities or nourished a grudge towards the petitioner or Congress party. It is stated in the reply that his younger brother Bhagat Ram Verma was a Youth Congress President from 1976 to 1983. The allegations of mala fide have been specifically denied by pointing out that he continuously worked from 1973 to 1988 as head of Crime and Intelligence Wings of the State Police in various capacities, such as Superintendent of Police. Deputy Inspector General of Police and Inspector General of Police. It is alleged that except from 1977 to 1980 when the Janta Party Government was in power, during which period his brother-in-law Shri Mehar Singh Chauhan was a Member to the State Legislative Assembly from Theog Constituency, during the entire period from 1973 to 1988, the Congress party was in power of Himachal Pradesh. During this period also, when Congress (1) was in power, he was kept as the head of the C. I. D. in the State Police. He has further alleged that from April, 1988 to December, 1988, respondent No. 2 was on deputation to the Border Security Force in Jammu and Kashmir and from December, 1988 to May, 1990, he was appointed as Inspector General (G) (Intelligence and Vigilance) Border Security Force at New Delhi. Respondent No. 2 has denied the allegations that he was, in any manner, responsible for suppression of farmers' agitation in June, 1990. According to him, Additional District Magistrate had ordered the firing at Kotgarh and action at Bhekhalti was taken under the orders of the Magistrate, who was present on the spot. It is denied by respondent No. 2 that registration of the concerned F. I. Rs. and investigations are in any manner at his instance. Filing of Civil Suit No. 7/91 by him against the petitioner is not denied. It is stated that as a responsible Government servant, he had no other remedy except to file the suit, in order to vindicate his honour when false and baseless allegations were levelled against him and even complaints were made against him to the higher authorities including to the Governor of the State by the petitioner.
12. Respondent No. 1 has filed its reply on the affidavit sworn on 16th July, 1991 by Shri Hira Lal Nashad, Joint Secretary (Vigilance and Home), wherrein it is stated that preliminary verification of allegations was made on the complaint of Lachhman Singh Bhatia, which had been forwarded by the Registrar of the High Court of Himachal Pradesh. This preliminary verification led to an enquiry and subsequently to the registration of seven F. I. Rs. against the petitioner and other officials of the State Council for Child Welfare. Denying that the registration of F. I. Rs. was result of any mala fide, it is alleged that the contents of FIR No. 9/90, on the face of it show the commission of offences under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (Act No. 49/88) (hereinafter referred to as 'the Act'). It has been alleged that the acts of omission and, commission, which have come on record during the course of enquiry pin-pointed the complicity of the petitioner and other officials of the Council and as such registration of the case appeared justified and legally correct. Denying that the registration of F. I. Rs. is at the behest of respondent No. 2, it has been alleged that the cases have been entrusted for investigation and the Staff of ' Inspector General (Vigilance) is independently enquiring into the matter.
13. When the writ petition came up for admission, on 12th June, 1991 in CMP No. 541 of 1991, an order was made directing that no challan shall be filed in the Court against the petitioner on the basis of the First Information Reports Annexure P-1 to Annexure P-1 / D. It was, however, made clear that investigation into the allegations made in these reports may continue. After respondents filed their replies and the petitioner had filed its rejoinder, learned counsel for the petitioner stated that at the time of filing of the writ petition, the petitioner had reason to believe that only five First Information Reports had been registered, but in view of the affidavits filed in reply, three more First Information Reports appeared to have been registered. A prayer was made for quashing the same also. Copies of F. I. Rs. were directed to be supplied to the petitioner and on 2nd July, 1992, interim order was modified permitting respondent No. 1 to continue and complete investigation into all the First Information Reports. It was, however, directed that no challan on the basis of the reports shall be put in Court. The prayer made on behalf of respondent No. 1 to recall the order was declined on 17th December, 1992.
14. An application made on behalf of Shri Lachhman Singh Bhatia seeking to added as party respondent in the writ petition came up for consideration on 4th December, 1992. This prayer was made on the basis that he had submitted a complaint to this Court, which had been forwarded to the Chief Secretary and the Inspector General of Vigilance to the Government of Himachal Pradesh and on the basis of the complaint made by him, criminal cases have been registered. Thus, he was entitled to be heard. Though the prayer of Lachhmansingh Bhatia for being impleaded as party respondent was not accepted, yet it was directed that he will be heard as an intervener in the case.
15. On 2nd April, 1993, arguments in the case were heard. It was stated by Pt. Om Parkash Sharma, Additional Advocate General that except F.I.Rs. Nos. 10 and 11 of 1990, investigation in other cases was complete and the prosecution sanction was awaited. It was also noticed that in the affidavit filed by Hira Lal Naushad, Additional Secretary (Vigilance and Home) sworn on 13th July, 1992, it was stated that after completing investigation in F.I.R. No. 38 of 1991 (Shimla East) case had been forwarded for sanction of the Government, but no-intimation had been received, nor sanction had been granted or declined. In view of this, respondent No. 1 was directed to file an affidavit disclosing whether any decision had been taken by the State Government in the matter of granting sanction.
16. On 22nd April, 1993, affidavit of Mr. S. S. Chandel, Director, Social and Women Welfare, Himachal Pradesh was perused, wherein it was stated that the Government of Himachal Pradesh had decided not to grant prosecution sanction against the petitioner with respect to case F.I.R. No. 38 of 1991 registered at Police Station (East), Shimla. Since nothing was stated as regards the other F.I.Rs., respondent No. 1 was called upon to file a comprehensive affidavit. On 29th April, 1993, it was stated by the learned Additional Advocate General that an affidavit sworn by MR. Thubdan Gomphel Negi, Additional Secretary (Vigilance) to the Government of Himachal Pradesh had been received by him, but the same was neither in order, nor the same contained the requisite information called upon by the Court. Copy of the same was shown to us and it was noticed that it contained absolutely sketchy information. Consequently, Secretary (Home) was called upon to file complete and comprehensive affidavit as regards according sanction in the other cases. Arguments were again heard and the judgment was reserved. In the meanwhile, Shri Attar Singh, Financial Commissioner-cum-Secretary (Home) to the Government of Himachal Pradesh filed an affidavit sworn on 5th May, 1993, which was defective. After removing office objections, it was actually received in the Court on 2nd June, 1993.
17. It is stated in the affidavit that in F.I.Rs. Nos. 5 to 9 of 1992, investigation is almost complete. The information supplied in this affidavit is to the effect that:
(a) In case FIR No. 5/90, prosecution sanction on 29th June, 1991 was sought only against Uma Joshi, the Executive Officer and Lekh Ram, Clerk of the Child Welfare Council. Prosecution sanction against the petitioner was not sought by the Inspector General (Vigilance).
(b) In case FIR No. 6/90, the Director of Vigilance, Himachal Pradesh through Inspector General (Vigilance) on 29th June, 1991 asked for prosecution sanction against Lekh Ram, Clerk of the Child Welfare Council. Sanction was not sought against the petitioner.
(c) In case FIR No. 7/90, the Law Department opined that no prosecution sanction is required against the General Secretary of the Child Welfare Council since she does not fall in the definition of public servant. Though in this case, there is a prima facie case under Sections 420, 468, 120-B of the Indian Penal Code.
(d) In case FIR No. 8/90, the challan is pending for scrutiny.
(e) In case FIR No. 9/90, sanction to prosecute in view of the opinion of the Law Department has not been accorded, since no offence is alleged to have been made out.
(f) In case FIRs Nos. 10 and 11 of 1990, the case is still pending for investigation.
18. The main plank of the argument of Mr. Sibbal, learned counsel for the petitioner is that the allegations, as made in the First Information Reports, even if they are taken at their face value and are accepted in their entirety, do not even prima facie constitute any offence or make out a case against the petitioner. Connected with this, his further submission is that since in six cases out of eight, investigation is complete, in those cases the allegations made in the First Information Reports and the evidence collected in support thereof do not disclose or make out any case against the petitioner for commission of any offence. In addition to this submission, another ground which has forcefully been urged on the basis of the material on record was that the cases have been got registered maliciously at the behest of respondent No. 2 with an ulterior motive for wreaking vengeance on the petitioner and with a view to personal grudge by respondent No. 2 and as such being manifestly attended with mala fide, proceedings deserve to be quashed.
19. Mr. K. D. Sood, learned counsel for respondent No. 2 has, in so far as the second submission made by the learned counsel for the petitioner is concerned, in seeking to quash the proceedings on the basis of mala fide, contended that the allegations of mala fide are not only baseless, but also founded on conjectures and surmises. Respondent No. 2 had nothing to do either with the registration of the cases or with the investigation. Investigation is being conducted by an independent department, over which respondent No. 2 has no control. The documentary evidence adduced on record in support of the plea of mala fide by the petitioner is not sufficient to record any finding against respondent No. 2 and from the record, it cannot be said that respondent No. 2 had any connection with registration of cases since as per the petitioner's own showing, the complaint was made in writing by Mr. Lachhman Singh Bhatia, addressed to the Hon'ble Chief Justice of the High Court, which was forwarded by the High Court to the Chief Secretary through letter dated 31st May, 1990, Annexure P-14 and the record would further reveal that it was during the investigation of the said complaint that all cases were registered.
20. Additional Advocate General Pt. Om Prakash Sharma on behalf of respondent No. 1 has vehemently contended that on receipt of the complaint Annexure P-1, which had been forwarded by the High Court to the Chief Secretary, inquiry in the said complaint was got conducted and during the progress of the inquiry, the cases were registered, on finding that circumstances disclosed commission of cognizable offences. Since prima facie, the First Information Reports disclose commission of offences, investigation into the same is necessary. It is the prerogative of the investigating agency to investigate the cases since the facts do disclose commission of offences. Allowing the writ petition will amount to stopping the process of investigation and thereby rendering the right of the police to investigate negatory. For the purpose of exercising powers either under Section 482 Code of Criminal Procedure or under Article 226 of the Constitution of India, the Court would have to proceed entirely on the basis of the allegations made in the First Information Reports and the documents accompanying therewith. It will not be permissible for the Court to examine the correctness or otherwise of the allegations. The allegations are such where the public interest also requires that investigation should continue and if ultimately no case is found to have been made out against the petitioner prosecuting agency will definitely submit thhe files for cancellation of the F.I.Rs.
21. Learned counsel for the parties have taken us through the entire record. Record of the investigation in the cases has also been made available to us for our perusal. Learned counsel for the petitioner has by taking us through each First Information Report laid emphasis that the allegations therein, if they are taken at their face value and accepted, do not disclose any offence, at least against the petitioner.
22. Before we examine in detail, the contents of each F.I.R. and also advert to the allegations of mala fide, we might refer to some of the judgments, which have been cited by the learned counsel for the parties as to the scope of this Court of interference at this stage of the proceedings.
23. In Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC 18 : (1945 (46) Cri LJ 413), the Judicial Committee strongly observed that if no cognizable offence is disclosed and still more if no offence of any kind is disclosed, the Police will have no authority to undertake an investigation. These observations were made in order to qualify the statement of law that the judiciary should not interfere with the police, in the matters, which are within their province.
24. The Supreme Court, considering the inherent powers of the High Court under Section 561-A of the Code of Criminal Procedure, 1898, which corresponds to Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') for quashing the First Information Reports, in R.P. Kapur v. State of Punjab, , held that where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating the evidence arises. In is a matter merely of looking on the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of Criminal Court to be issued against the accused persons.
25. The aforementioned being the settled legal position, we need not refer to number of other decisions cited at the Bar except by making reference to only a few others. In State of U.P. through C.B.I. S.P.E., Lucknow v. R.K. Srivastava, , the position of law was reiterated by holding that the well settled principle of law that if the allegations made in the F.I.R. are taken at their face value and accepted in their entirety do not constitute an offence, the criminal proceedings instituted on the basis of such F.I.R. should be quashed. While reiterating this legal position and referring to the facts of the case, the Court held that the High Court had rightly held that since the criminal proceedings had been started on the basis of F.I.R., which did not contain any definite accusation, it amounts to abuse of the process of the Court and as such was liable to be quashed. In the said case, the two employees of the State Bank of India and one of its customer, holding current account were charged with offence under Sections 120-B, 420, 468 and 471 of the Indian Penal Code and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947. The allegations made in the F.I.R. were clear that the bank employees had no intention whatsoever to make any wrongful gain or to make any wrongful loss to the Bank in accepting certain cheques. The allegations made in the F.I.R. or in the charge-sheet did not show that the bank employees or the customer had acted dishonestly, namely, acted with a deliberate intention to cause wrongful gain or wrongful loss nor did the allegations constitute any offence of cheating or forging. It was observed that at the most there was some delay in making the relevant entries. It was held that since F.I.R. did not contain any definite accusation, it amounted to an abuse of the process of Court. Order of quashing the criminal proceedings passed by the High Court was upheld.
26. In State of Haryana v. Ch. Bhagaj Lal, after referring to number of decisions, relating to exercise of inherent powers of the Courts under Section 482 of the Code and the extraordinary power under Article 226 of the Constitution of India and interpreting some of the provisions of the Code, the Apex Court categorised, by way of illustrations, the cases where power could be exercised by the High Court, either to prevent abuse of the process of the Court or otherwise to secure the ends of justice. The Court observed that though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of cases, wherein power should be exercised, noted the following categories of cases, by way of illustration, for exercise of power, either to prevent abuse of the process of Court or otherwise to secure the ends of justice :
"1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and acepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
27. It is in the light of the observation made by the Apex Court in the Bhajan Lal's case (1992 Cri LJ 527) (supra) that we would be approaching to the facts of the instant case, for which purpose first of all, we may notice the submission made on the plea founded on the allegations of mala fide.
28. Serious allegations have been made in the instant case by the petitioner, who herself has been holding a very high and responsible public office against respondent No. 2, who equally is also holding very high and responsible position in the police hierarchy. It is not in dispute that on 25th February, 1991, Civil Suit No. 7 of 1991 was instituted by respondent No. 2 against the petitioner and against two reputed Newspapers, namely, Times of India and Indian Express for recovery of Rupees 2,25,000/- as damages, which is still pending adjudication. The suit is founded on the allegations made by respondent No. 2 that the petitioner with a malicious intention and with a view to malign and to injure his reputation has been making false and wreckless statement against him from time to time, knowing fully well that the said statements were wrong to her knowledge. Reference is made to one of the news items published in the Indian Express in its issue on 6th March, 1990 to the following effect:
"Stokes charge against BSF IG" "Shimla, March 5 - The Himachal Pradesh Speaker, Mrs. Vidya Stokes, on Sunday, accused the Inspector General of BSF, Mr. R. R. Verma, of having actively campaigned against her from the Theog Constituency.
She told newsmen here that Mr. Verma and his family had left no stone unturned to see her ouster from the constituency. Mrs. Stokes won over her only Janta Dal rival by a slender margin.
She said that the forest mafia had also campaigned against her."
29. After referring to the aforementioned statement, respondent No. 2 alleged that statement aforementioned was false to the knowledge of the petitioner, since neither he took any part in the elections to the Himachal Pradesh Vidhan Sabha held in 1990 much less in the Theog Constituency, nor worked against the petitioner.
30. Reference has also been made by respondent No. 2 to another news item, which appeared in the Times of India on 15th December, 1990 under the caption "Two held in H.P. arson case":
"The vigilance department has been investigating cases of alleged fraudulent payments and embezzlement of funds and has also registered cases against the former Speaker of the State Assembly and Congress leader Mrs. Vidya Stokes, Mrs. Stokes on her part has alleged that the Director General of Police, Mr. R. R. Verma is behind the frame up. Mr. Verma denied her charge as 'baseless and figment of her imagination'."
31. Respondent No. 2 after quoting the aforementioned news items has averred that he was neither, in any manner, connected with the enquiry or registration of case against the petitioner, nor with the investigation of the same. Statement made by the petitioner and publication of the report has been alleged to be malicious and defamatory
32. In para 4 of the plaint, allegations of malice have been stated by respondent No. 2 in the following words :
"That defendant No. 1 has been acting in a vindictive manner and has been harassing the plaintiff. Even while she was Speaker of H.P. Vidhan Sabha she abused the position and got the plaintiff transferred from Himachal Pradesh when to the best of his knowledge he was not on the 'offer list of officers to be sent on deputation' at the relevant time. In her letter of 11th December, 1990, addressed to the Government H.P. She has admitted the said fact. The plaintiff was transferred outside Himachal Pradesh and he had to suffer mental strain, torture, loss of reputation and had to incur additional expenditure in maintaining two establishments. Defendant No. 1 had been making wild statements against the plaintiff and the two statements mentioned above were published by defendants Nos. 2 and 3 as mentioned supra, the Indian Express and Times of India had vide publicity and by publishing the defamatory statements defendants have rendered themselves liable to pay damages to the plaintiff...."
(Note: The plaintiff in the aforementioned quoted para refers to respondent No. 2 and defendant No. 1 refers to the petitioner).
33. First Information Reports Nos. 5 of 1990 to 11 of 1990 were registered during the pendency of the enquiry/investigation on complaint Annexure P-13 of Lachhman Singh Bhatia, when the said complaint was sent by the High Court on 21st May, 1990 to the Chief Secretary to the Government of Himachal Pradesh through letter Annexure P-14. The reports were registered on or about 22nd September, 1990. The 8th FIR No. 38/ 90 was registered at Police Station, Chhota Shimla on 15th March, 1991. The allegations in brief, which the petitioner on mala fide has made against respondent No. 2, have been quoted above. We are informed that the Civil Suit filed by respondent No. 2 is still pending trial in this Court in its original civil jurisdiction. In view of the fact that serious allegations have been made in the instant case by the petitioner against respondent No. 2 and by respondent No. 2 in the Civil Suit against the petitioner and the allegations are sought to be supported on the basis of affidavits only, we feel that it shall not be appropriate for us to merely rely on the affidavits, in order to record our finding on such allegations. We are not saying that the allegations made by the petitioner have no basis or foundation or that what respondent No. 2 is saying by refuting those allegations is the whole truth, but in order to record any positive finding on the respective stands taken by the petitioner and respondent No. 2, as noticed above, it may not be possible to place reliance merely on the affidavits. Allegations require to be decided on taking evidence, which we are not inclined to take in the instant writ petition. Otherwise also, recording of the finding in this case might cause prejudice, both the petitioner as well as to respondent No. 2, in the fair trial of the pending Civil Suit, where parties will have full opportunity in leading oral evidence as well. The Supreme Court in Ram Saran Dass v. State of Punjab, 1967 Serv LR 771, noticing the seriousness of allegations made by the appellant therein against the responsible officers of the State, held that:
"In a case of this kind where serious allegations are made by the appellant against responsible officers of the State, it may be desirable not to rely merely on affidavits, but to take evidence in Court that however is a matter which the High Court in its discretion will have to consider. If the appellant wishes that he should be allowed to give evidence in support of his allegations the High Court may allow him to do so. To that extent the respondent also may be called upon to give evidence in rebuttal."
34. The course, which the Court should adopt in such like cases, where serious allegations of mala fides are made against the senior officers was also stated in a subsequent decision by the Supreme Court in D.D. Suri v. A.K. Barren, by observing that (at pp. 177-178 of AIR):
"We are wholly unable to understand how in the presence of all the allegations which had been made in the petition including those of mala fides by a senior member of the Indian Administrative Service against other senior Officers and the State Government the High Court was justified in dismissing the petition in limine by just writing the word 'dismissed'. The High Court did not even call for affidavits in reply to the allegations contained in the petition. This Court has repeatedly laid down (see Gian Chand v. State of Haryana following Ram Saran Dass v. State of Punjab (Civil Appeal No. 36A of 1963, D/- 16-9-1963 (SC)) that in such circumstances the High Court ought to call upon the respondents to make a return and then consider whether allegations have been proved or not. If it is found that the appellant has made reckless allegations which are not founded on facts it would be in the fitness of things to take suitable action against him. But if on the other hand it is found that there is substance in his allegations there is no reason why the High Court should not grant him the necessary relief if a proper case is made out for doing so. It is quite possible that in a given case the proper course for a writ petitioner should be to seek relief if a proper case is made out for doing so. It is quite possible that in a given case the. proper course for a writ petitioner should be to seek relief by way of a suit if there are several disputed questions of fact but all these matters can be decided only if the petition is admitted and it is heard after the return has been filed by the respondents."
35. The view, which we are about to take that the petitioner otherwise deserves to be granted the relief prayed for in the instant case by making an order of quashing the F.I.Rs. on different ground, we need not, for the same reason, record any finding on the serious allegations of mala fide lest any decision taken by us in the instant case, on the plea of mala fides might prejudice either the petitioner or respondent, No. 2 in fair trial of the Civil Suit, where parties will have ample opportunity of leading evidence and the Court will record findings, which will be subject to scrutiny by an appeal Court, if the matter is taken up in appeal.
36. Before we take up of the First Information Report separately, it will be necessary for us to refer to the Constitution of the Himachal Pradesh State Council for Child Welfare (hereinafter referred to as the 'Council') with whose functioning the petitioner has been associated as General Secretary and it is in that capacity that the aforementioned eight cases have arisen. It is not disputed that the council is a voluntary organisation and is governed by its own Constitution Annexure P-3. The aims and objects of the council are numerous, i.e. to promote generally the formulation and implementation of policies and programmes relating to welfare of children in Himachal Pradesh and co-ordinate activities and help the development of the Child Welfare Movement in the State; to initiate, undertake, or aid directly or through its branches or affiliated bodies or indirectly any scheme for the furtherance of child welfare and to organise and to maintain institutions for the training of child welfare workers.
37. According to the Constitution and Memorandum of Association, the general body is the supreme. Management and the affairs of the council are vested in the Executive Committee, which is its governing body. This governing body is headed by the President, who is the Governor of the State. Vice-President is the Lady Governor and its Chairman is the Chief Minister. Welfare Minister to the Government of Himachal Pradesh is the Vice-Chairman. The petitioner is the General Secretary. Other prominent Government officials in the governing body are the Commissioner-cum-Secretary (Finance), Secretary (Education), Secretary (Welfare), Director (Welfare), Director (Education), Secretary to Governor, Director, Rural Development, as also some of the other heads of Departments of various Government Departments. It is the petitioner's case that since the governing body consists of very high digaitaries, due to their pre-occupation, they cannot over-see and manage the council on day to day basis and divert their attention to various welfare centres of the council located in many far flung area of the State, therefore, according to the Rules and Regulations, there is a Standing Committee appointed by the Executive Committee for the performance of day to day administrative functions of the council. The Standing Committee consists of Secretary (Welfare) to the Government of Himachal Pradesh, Director, Social and Women's Welfare, Himachal Pradesh Government, Secretary (Finance), Himachal Pradesh Government and the General Secretary. The petitioner being the member of Standing Committee in its honorary elected General Secretary. Decisions are taken by a majority vote. It is the Executive Committee, which authorises the General Secretary to incur recurring expenditure, provided it is a routine item of expenditure, involving no departure from settled policy.
38. The Treasurer and the Secretary are responsible to operate the bank accounts jointly. The Director (Welfare), Himachal Pradesh or the Joint Director (Welfare) or in his absence, Assistant Director (Welfare) is the Honorary Treasurer. It is the responsibility of the Treasurer to present all financial statements, audited and unaudited, at all Executive Committee meetings. Honorary General Secretary is the Chief Executive Officer of the Council. Proper accounts are required to be maintained of all transactions to be audited annually.
39. The Constitution and Memorandum of Association thus would show that it being a voluntary organisation is not a Government department or a statutory body, which is required to follow Rules and Regulations formulated or adopted by the State Government. It has its own Rules and Regulations in the matters of administration and utilisation of funds and grants. General body being supreme, otherwise it is the governing managing body, which is charged with the management of all affairs. Regulation 13 say that:
"The general control of the affairs of the State Council shall be vested in the Executive Committee which shall be governing body of the State Council for the purpose of Section 16 of the Societies Registration Act 21 of 1860."
40. Regulations Nos. 22 and 33 deal with and provide for the manner as to how the affairs of the State Council are to be conducted in its day-to-day business and the functions are to be discharged by the Executive Committee. The executive council is also charged with the management of all functions, which vests in the council. It is fully empowered to receive and disburse money and properties, both moveable and immoveable. Reading of the entire memorandum of association would show that no part of the same enjoin upon the Executive Committee or the Standing Committee a duty to follow any Rules or Regulations formulated by the State Government or to follow the norms set up by the State Government. In the light of this, we have to examine the allegations made in the First Information Reports.
41. Annexure P-1/A, FIR No. 5/90 pertains to the allegations that the petitioner in conspiracy with M/s. Basant Singh and Sons, Shimla and other officials of the State Council had cheated the council by forging documents and caused wrongful loss of about Rs. 5200/- to the State Council with corresponding gains to themselves and thus offence under Sections 420, 467-468, 471-A and 120-B of the Indian Penal Code is made out against them. The allegations made in F.I.R. are to the following effect:
"...it has been revealed that two wooden and iron sheets structures were built at E.V.T.C. Kamla Nagar, Shimla, in January 1986, under the orders of Smt. Vidya Stokes, the General Secretary of the Council. The structures are being used as bath rooms for the handicapped girls. For the construction of these particular structures no set norms have been followed. The structures have been built through M/s. Basant Singh and Sons, Shimla, for a sum of Rs. 6,200/- vide Bill No. 1259, dated 3-1-1986. Payment for these bills was made on the same day in cash. According to the bill, timber and G.I. sheets have been used for these erections although material used at site is of very inferior quality and would have cost not more than Rs. 1000/- in normal course...."
42. The next F.I.R. No. 6 of 1990, Annexure P-1 / B is for the commission of offence under Sections 409, 420, 467, 468 and 477-A of the Indian Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947 against the petitioner and other officials of the council. The allegations are to the effect that the petitioner has shown disbursement of Rs. 4800/- in favour of one Shri Maghi Ram, Carpenter by way of salary from 1st April, 1984 to 31st March, 1985. Though the carpenter is shown to have worked as a part-time carpenter, but enquiry reveals that during this period, he was in regular employment of C.P.W.D. at Shimla and never worked, nor received any payment. The allegations in verbatim may be reproduced as under:
"...it has been revealed that Smt. Vidya Stokes the General Secretary of H.P. State Council Welfare had shown a disbursement of Rs. 4800/- in favour of one Shri Maghi Ram, Carpenter, as his salary from 1-4-1984 to 31-3-1985. This carpenter had been shown to have worked as part-time carpenter at E.V.T.C. Kamla Nagar, Shimla. On enquiry it has been found that Shri Maghi Ram was in regular employment with C.P.W.D. at Shimla from April, 1984 to March, 1985 and he had never worked as a part-time carpenter at E.V.T.C. Kamla Nagar, Shimla, during the said period and had also not received the payment mentioned in the bill."
43. The third case is F.I.R. No. 7/90, Annexure P-1 / C regarding the purchase of a printing machine from Delhi firm for imparting training to the deaf and dumb. It is alleged that the machine did not work even once for want of necessary accessories, which were required to be purchased along with the mach-ine. The model purchased is an old and out dated one and can be operated only manually. Presently electrically operated models are in use. No set norms were observed and the price paid appears to be too high. The payment was made in March, 1985 and delivery of machine was taken in August, 1985. Thus, wrongful loss was caused to the council by forging documents. The offences as alleged are under Sections 420/467/468/120-B of the Indian Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947. In order to appreciate the allegations, the following is the verbatim reproduction of the F.I.R.:
"...it has been revealed that printing machine was purchased in March, 1985 from M/s. Delhi Print Linkers, Chawari Bazar, Delhi, for Rs. 20856/- to impart training to the deaf and dumb children at E.V.T.C. at Kamla Nagar, Shimla. The machine has not worked even once, since its purchase because the necessary accessories were not purchased along with. Moreover, the actual requirement of the institution was to purchase an electrically operated model currently in use. Whereas the model purchased is an old and outdated one and can be operated only manually. No set norms have been observed for the purchase of this machine. The quotations are not genuine and have been fabricated to complete the formalities. The price of the machine is also stated too high than the price prevailing in the market at that time. The payment of the machine was made in March, 1985 whereas the machine was delivered as late as August, 1985."
44. F.I.R. No. 8/90, Annexure P-1/D relates to the misuse of her position, by the petitioner in the recruitment and enrolment of 186 persons in various units of the council, within the last 12 years i.e. from 1978 to 1990. It is alleged that no requisition was sent to the Employment Exchanges and appointments were not made, as is required to be done by the rules framed by the Himachal Pradesh Government. The policy of reservation was also not adhered to by the petitioner. On the basis of the allegations, it is stated in the F.I.R. that the petitioner, in discharge of public functions has misconducted and thereby committed offence under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The allegations in detail as made in the F.I.R. are to the following effect:
"...it has been revealed that Smt. Vidya Stokes, the General Secretary of the Council has misused her official position as General Secretary of the Council in the matter of recruitment/enrolment of the staff of different categories since 1978. As General Secretary she has employed/ appointed about 186 persons in the council and no requisition was ever sent to the Employment Exchanges for getting suitable candidates which is a must in the matter of employments. The Constitution of the Council also demands that all such appointments are required to be done in accordance with the rules framed by the H.P. Govt. The policy of reservation should also have been adhered to but no such record had been maintained by the Council.
45. Next is the F.I.R. No. 9/90, Annexure P-1, in nut-shell pertains to the violation of norms and rules, which are generally required to be followed in the Government departments for inviting tenders, opening quotations etc. and conducting market survey. By not following the set general principles and not approaching the Controller of Stores, it is alleged that the petitioner committed an offence under Section 13(2) read with Section 11(1)(d) of the Prevention of Corruption Act, 1988. It is alleged that there was a proposal in 1982 to instal a plant to manufacture Panjiri for distribution amongst the children in various centres being run by the Council. After a protracted correspondence, the Indian Diary Corporation on 1st October, 1987 released a sum of Rs. 12 lakhs. The petitioner had already got in touch with a firm M/s. Mixi Therm, which later on changed its name to Unique Mixers and Furnances Pvt. Ltd. Neither any publicity was made to invite tenders or call quotations, nor any request was made to the Controller of Stores. Market survey was not got conducted. It was more or less a personalised and private affairs of the petitioner. Only negotiations were held by correspondence. While executing agreements, no precautions were taken by obtaining guarantee for execution of the work. Though the land had become available on the spot, but matter of installing machinery was got unnecessarily delayed by not getting the construction work commenced. The council entered into purposeless litigation with private persons and no effort was made by the petitioner to get the trival matters settled with the Deputy Commissioner, Shimla, through her influence which she could have exercised as a Speaker, Vidhan Sabha. Thus, wrongful loss was caused to the council. It will be necessary to quote verbatim allegations in this case also:
"...it transpired that it was proposed in 1982 to instal a plant to manufacture Panjiri for distribution among the children in various centres being run by the council. After a protracted correspondence by the Council with H.P. Govt. and with the Govt. of India, a sum of Rs. 12 lakhs was released by the Indian Dairy Corporation on 1-10-1987 vide their letter No. F/Gr-1/15-18178, dated 1-10-1987. In the meantime, when this correspondence was going on, the General Secretary, Mrs. Vidya Stokes had already got in touch with a particular firm M/s. Mixi Therm (which later changed its name to M/s. Unique Mixers and Furnances Pvt. Ltd.) located in Thane, near Bombay in Maharashtra State. Neither any publicity was given by the Council to invite tenders/quotations to set up a plant of this nature nor any request was made to the Controller of Stores, Govt. of H.P. for this purpose. Neither the market survey was done by the General Secretary nor any other firm was invited to give its tenders. The entire matter was handled more in a personalised and private manner rather than following the official procedures. Keeping in view the fact that it was public money that was going to be utilised but this fact seems to have been completely ignored by dealing with this case. As a consequence of negotiations and correspondence with the concerned firm, the General Secretary executed two agreements with the said firm on the same day i.e. 29th August, 1988. Interestingly, one agreement was termed as 'interim agreement' and the other one as 'agreement'. A perusal of the contents of these agreements shows that the same are almost one sided and totally beneficial to the private firm and rather prejudicial to the interest of the council. The contract price was kept at Rs. 21,30,000/ -, whereas the money available was only Rs. 12,00,000/-. The interim agreement puts down the contract price as Rs. 12,00,000/-. The terms of payment were kept heavily weighted in favour of the seller, giving away 50% of the total contract price only getting some drawings and written information in return. No guarantee of any sort was provided in the terms to safeguard the interest of the council, in case of default or breach of agreement by the selling firms. No guarantee through a bank was asked for by the council, which was normal precaution according to rule. The subsequent developments in this case clearly show that two instalments of Rs. 3.00 lacs each were released by the council on 29-8-1988 and 7-3-1989 respectively. In spite of the fact that virtually nothing had been done at the proposed site in Hiranagar, Shimla. The agreement had been executed between the General Secretary of the Council and Shri Ramesh Tek Chandani of the said firm. Even at a latest stage, the council could have asked for a bank guarantee from the firm to secure its interests but it was not done for reason best known to the General Secretary. In spite of the fact that the land had became available at the proposed site to the council in December, 1988, no work was undertaken on the ground by the firm and later on in the month of May, 1989, the council got itself involved in an unnecessary and purposeless litigation with a private person concerning some piece of land. Although the Civil Court gave no stay order in respect of the particular Khasra number on which the building of the plant was to come up till the council did not prevail upon the selling firm and undertake the building work. Although Smt. Vidya Stokes, the General Secretary was holding an important public office as Speaker of the H.P. Vidhan Sabha, yet it is seen that she made hardly any efforts to get the trivial revenue matters settled through Deputy Commissioner, Shimla, which could have been done easily. This way she could have ensured the timely execution of the work by the firm. The record indicates that neither she nor the Executive Officer made any genuine efforts to force the firm to complete the job as per the agreement. As a result of this extraordinary transaction and the indifference displayed later by the General Secretary and other officers of the H.P. State Council for Child Welfare, the council was not only put to a loss of Rs. 6 lacs already paid to the firm but also to the interest accrued thereon. The loss is further compounded by the fact that the scheme of setting up the plant could never be put into effect and thus the very purpose for which this entire exercise was done stands defeated. And the funds provided by the Indian Dairy Corporation were just blown away causing wrongful loss to the Govt. and undue gain to a private party, apparently with the connivance of the General Secretary, Officers of the Council for Child Welfare...."
46. F.I.R. No. 10 of 1990, Annexure-D charges the petitioner with the offence of criminal misconduct, in conspiracy with private individuals and Co-operative Societies, in having caused wrongful loss to the council and ultimately to the Government. The gist of the allegations is that number of consumable and non-consumable items worth several lacs of rupees, during the last several years, have been purchased by the Council for number of its Centres, Ashrams and Balwaris etc. located in different parts of the State. The same were purchased either from private parties or from obscure Cooperative Societies, in violation of the prescribed procedure for purchase of such items. Quotations were not invited from other firms. The Co-operative Societies, from whom the items were purchased, had not been approved by the District Purchase Committees. The prices paid for procuring items were higher than the one approved by the Government. In other words, the allegations are that the regulations framed by the Government in the matter of procurement and purchase of consumable and non-consumable articles were not followed. Thus, the offences alleged are under Section 420/ 120-B of the Indian Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947 and Section 13(2) of the Prevention of Corruption Act, 1988. The allegations in verbatim may be reproduced as under:
"...it has come to light that the council has made purchases of different kinds of items - consumable and non-consumable worth several lacs of rupees during the last several years, more particularly from 1985 onwards. These purchases have been made for various Centres, Ashrams, Balwadis etc. being managed by the Council throughout the State.
A scrutiny of the records of the council reveals that a number of nutrition products like Khajur, Ground nut, Ghana, fried dal, muraba etc. were purchased in bulk from private parties and from obscure Co-op. Societies, violating the prescribed procedure for purchase of such items on several occasions. The only private firm from whom such products have been purchased is Jamni Dass Arjan Lal of Ganj Bazar, Shimla. No quotations have been invited from other firms. Similarly many items were procured from obscure Rural Co-op. Society, namely, 'GANPAIRI DALIT VARG', Co-op. Consumer Store, P.O. Shoghi, Tehsil, Shimla. This Co-op. Society had not been approved for purchases by the District Purchase Committee. Those responsible for such lapses include the General Secretary, the Executive Officer and other concerned officials. It is also seen that for many such consignments, by paying higher prices than the ones approved by the District Purchase Committee or higher than prevailing market price, the above mentioned officers have committed criminal misconduct in conspiracy with private individuals and Co-op. Societies, causing wrongful loss to the council and thus to the Government...."
47. F.I.R. No. 11/90 charges the petitioner with commission of cognizable offence under Sections 409, 420, 120-B of the Indian Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947 and Section 13(2) of the Prevention of Corruption Act, 1988 for causing wrongful loss to the council. The allegations are two-fold in the nature, namely, purchase of electric appliances, furniture and furnishing items, sewing machine and shoes from various private individual firms and certain Co-operative Societies. It is alleged that items are classified as standard items and are covered by rules and procedure laid down by the Himachal Pradesh Government, which are controlled by the Controller of Stores, Himachal Pradesh. While making purchase, no exemption was sought from the Controller of Stores. Though the items were available at the rate contract, but purchases were made from the open market, thus violating the rules. The second part of the allegations is the placing of council's jeep at the petitioner's disposal during her election campaign by abusing her official position in the council and of hiring of a taxi by the Council during the relevant period. Use of the jeep, by the petitioner, during her election campaign is alleged as a loss to the council and gain to the petitioner and similarly by hiring taxi during the relevant period, it is alleged that the amount of charges paid to taxi is nothing but misuse of funds and thus wrongful loss was caused to the council and the Government exchequer. To this is also added a further allegation relating to the greeting cards received by the Council from the Indian Council of Child Welfare, New Delhi during 1988 for selling to the general public to collect funds. Cards are alleged to have been sold through Himachal Pradesh Vidhan Sabha for Rs. 7,000/-. It is alleged that the amount has not been accounted for and the said amount of Rs. 7000/- has been embezzled. In details, the allegations are in the following words:
"...it is revealed that the council made purchases of different kinds of consumable and non-consumable items worth several lacs of rupees during the last several years, more particularly from 1985 onwards. These purchases were made for different centres/ ashrams/balwaris etc. being managed by the Council throughout the State.
The perusal of records of the purchases shows that a number of electrical appliances like table fans, ceiling fans and pedestal fans etc., furniture items like office furniture, blackboards, beds etc., items of furnishing like bed sheets, matresses, quilts, pillows covers, pillows, blankets, towels durries were purchased in considerable quantities. The other items purchased (illegible) rubber shoes, chappals for boys and girls and also clothing items like terrycot, khaddar, dupttas and uniform cloth, under garments, socks, woolen jerseys and wool etc., which were purchased from private firms like Batra Traders, Sector 21 Chandigarh, Khanna Cotton Works Dhalli, Shimla, Rajan Enterprises Distt. Kangra, Vinod and Promod Agencies, Shimla, M/s. Ashok & Co. Dhalli, Shimla etc. as also from a few obscure Cooperative Societies like Chamyana Co-op. Society, Gahan, Sanjauli.
Besides sewing machines were also purchased in a good number. Most of these items are classed as 'Store Items' and are covered by the rules and procedure laid down by the Govt. of H.P. and which is controlled by the Controller of Stores H.P. There is nothing on record with the council to show that any exemption was sought from the Controller of Stores to make such purchases from the open market. For several of these items, rate contract was also available but still the officers of the council made purchases from the open market in violation of the rules laid down for this purpose.
It also transpired during the enquiry that jeep No. HIS 755 belonging to the H.P. State Council for Child Welfare had been unauthorisedly placed at the disposal of Smt. Vidya Stokes, the then Speaker of H.P. Vidhan Sabha, for purpose of use in electioneering in Feb., 1990. This jeep remained attached for this purpose for a period of about one month during which it covered a distance of 3353 kms. No payment has been received by the Council for use of this jeep and a wrongful loss has been caused by the officers of the council particularly the General Secretary and the Executive Officer by abusing their official position. It also came to light that a taxi No. HPZ 377 was hired from Vishal Himachal Taxi Operators Union, Shimla by the Executive Officer during the same period in connivance with the General Secretary, without any proper authorisation and justification. Moreover, this taxi was also used extensively in the area of Theog Tehsil where the General Secretary of the Council was herself a candidate for the Legislative Assembly elections. A sum of more than Rs. 9,000/- is shown paid as charges for the taxi which has apparently been misused, causing wrongful loss to the council and the Govt. exchequer.
It has further come to notice during the enquiry that a number of greeting cards had been received by the Council from ICCW, New Delhi in 1988 for selling the same in the public to collect funds. These cards were sold through H.P. Vidhan Sabha and a sum of Rs. 7,000/- was received by the Council as sale proceeds. This amount which was to be remitted to the Indian Council for Child Welfare, has not been accounted for and has been embezzled to all intends and purposes by the officials of the H.P. State Council for Child Welfare.
From the above, it becomes clear that serious lapses have been committed by the General Secretary, the Executive Officer and other officials of the H.P. State Council for Child Welfare in conspiracy with one another as well as with private individuals like suppliers etc., causing wrongful loss to the council. These officers/officials are also guilty of misuse of official position to achieve their own ends and misappropriation of public money...."
48. The last case registered is under F.I.R. No. 38/91 at Police Station, Chotta Shimla. The offences for which the case has been registered are under Section 408/420/379 of the Indian Penal Code. It is alleged that during the financial year 1990-91, a sum of Rs. 50 lacs to Rs. 60 lacs were received by the Council, but only Rs. 25 to 30 lacs had been spent. Salary of the officials had not been paid and no amount is given for the use of the Ashrams. Though cash book reveals that the amount has been given to various schemes, which is merely an eye wash. Cash book with respect to Balwaris is missing which contains the details of Rs. 7 to 8 lacs of rupees. Bill vouchers in respect of Balwari centres are also missing. Shri Lekh Ram, an employee of the council is involved in the fire accident. G.P. Fund account of officials has not been accounted for. There are irregularities with respect to the amount received from the Central Government in respect of 122 Shishu Kendras. The allegations as contained in F.I.R. in detail are on the basis of an annonymous complaint, alleged to have been received by the Superintendent of Police, Shimla, which was forwarded to the S.H.O. Police Station East by the Additional Superintendent of Police City, who recorded at the foot of the complaint "facts are verified. The cash books reportedly missing. Vouchers are incomplete. The case be registered at Police Station, East Chhota Shimla and to be investigated by a team headed by Deputy Superintendent, City and assisted by S.H.O. Police Station, Chhota Shimla under my supervision." After the aforementioned endorsement, there is another endorsement made by the Inspector, S.H.O. Police Station East, Shimla while registering the case :
"Proceedings by Police:
As per this application which has been received in the Police Station, the case has been registered under Section 408/420/379, I.P.C. as made out from the facts. The case is registered and four copies of the FIR have been prepared simultaneously and which have been sent to the concerned officers after registration of the case. The file is entrusted for investigations to the Deputy Superintendent of Police, City. Sd/-
S.S. Chauhan, Inspector, S.H.O. East, Shimla-2."
49. Before taking up the scrutiny of the nature of reports lodged involving the petitioner, we may refer to the complaint, which had been made by the intervener Lachhman Singh Bhatia to the Chief Justice of this Court, Annexure-L, which is dated 20th May, 1990. He had in the complaint tried to highlight the irregularities committed by the Executive Officer of the Council by pointing out that the executive officer gets all the bills etc. passed very cleverly from the General Secretary of the Council, namely, Mrs. Vidya Stokes. The petitioner, who has absolutely no time to look into the affairs of the council and is engaged in politics with blind faith dittos the action of the executive officer. It was this complaint, which was forwarded to the Chief Secretary and reports are alleged to have been lodged, during the progress of the enquiry in the said complaint.
50. The legal position, as regards the safeguards, which are required to be taken before a public servant is publicly charged with acts of dishonesty, which amounts to serious misdemeanour is the holding of some preliminary enquiry into the allegations. Such preliminary enquiry must proceed in a fair and reasonable manner and the object of holding such enquiry is to avoid causing incalculable harm not only to the officer in particular but to the department, to which he belongs. This necessity of holding preliminary enquiry was emphasised by the Apex Court in P. Sirajuddin v. State of Madras, . In para 17, the Court observed:
"...Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do inealculable harm not only to the officer in particular but to the department he belonged to, in general. If the Government had set up a Vigilance and Anti-Corruption Department as was done in the State of Madras and the said department was entrusted with enquiries of this kind, no exception can be taken to an enquiry by officers of this department but any such enquiry must proceed in a fair and reasonable manner. The enquiring officer must not act under any preconceived idea of guilt of the person whose conduct was being enquired into or pursue the enquiry in such a manner as to lead to an inference that he was bent upon securing the conviction of the said ' person by adopting measures which are of doubtful validity or sanction. The means adopted no less than the end to be achieved must be impeccable. In ordinary departmental proceedings against a Government servant charged with delinquency, the normal practice before the issue of a charge-sheet is for someone in authority to take down statements of persons involved in the matter and to examine documents which have a bearing on the issue involved. It is only thereafter that a charge-sheet is submitted and a full-scale enquiry is launched. When the enquiry is to be held for the purpose of finding out whether criminal proceedings are to be resorted to the scope thereof must be limited to the examination of persons who have knowledge of the affairs of the delinquent officer and documents bearing on the same to find out whether there is prima facie evidence of guilt of the officer. Thereafter the ordinary law of the land must take its course and further inquiry be proceeded with in terms of the Code of Criminal Procedure by lodging a first information report".
51. The aforementioned is an important guideline with a view to avoid unnecessary harassment to the innocent persons, especially holding high public office. Having gone through the record of this case and having perused the files, which were made available to us, on the close of the hearing, leaves no manner of doubt that what to say of holding any preliminary enquiry, the cases were got registered involving the petitioner in a reckless manner without even caring to go through the provisions of the Constitution of the Council, as regards duties and responsibilities of the General Secretary as also the fact as to whether in the matter of procurement of ration etc. in the matter of contract or any other matters, the council is or is not required to follow the Government instructions, The majority of the reports are based and founded upon the allegations that the petitioner failed to follow the rules and regulations, which are required to be followed in Government departments. We have already noticed the Constitution of the Council, which is a wholly autonomous body, a society registered under the Societies Registration Act, having its own Constitution and Management. Although investigations have been concluded in most of the cases, but even in those cases there is no material worth the name by which it can be inferred that the council was regulated by the rules, regulations or instructions applicable to the Government departments either in the matter of purchase of ration items or in the matter of entering into the contract.
52. In F.I.R. No. 5/90, the allegations are that wooden and iron sheets structures were built under the orders of the petitioner, which are being used as bath rooms for the handicapped girls. No set norms were followed for the construction of the structure, which were got built through the firm M/s. Basant Singh for a consideration of Rs. 6,200/-. Though the timber and G.I. sheets have been used during the construction, but the material used is of inferior quality, which would not cost more than Rs. 1,000/- in normal course. In order to bring home the charge, the first and basic question required to be shown would be that the structures were constructed under the orders of the petitioner. Since investigation is stated to be complete in all respects, we on scanning through the entire file have not been shown, nor are we in a position to find out any evidence or material that it was the petitioner, who had placed the order for building the structure. It is due to this objection raised by the Law Department that challan has not been made ready for being put up in Court. It is also not shown from the record that who had inspected the structures and carried out measurements to find out the costs of material and labour used. It appears to be the ipse dixit of the Investigating Officer and not of expert valuer, who would say about the cost factor of the material used in the structure. Whether in the matter of getting such type of structures, it was necessary for the council to follow any norms or what were the alleged norms, which were required to be followed are neither stated in the report, nor on the file. Allegations are absolutely vague, lacking in material particulars. In what manner the petitioner is connected or concerned with the alleged forgery or cheating is not at all alleged. The F.I.R. says that it was during the course of verification of enquiry that these facts were revealed. In case it was during enquiry that certain facts were revealed, there is no reason forthcoming as to why the order, if any, direcing the firm to construct structure has not been made a part of the challan or no other definite role has been imputed against the petitioner in the commission of the alleged offence.
53. In Tulsi Ram v. State of Uttar Pradesh, , it has been held that before a person is convicted under Section 420 of the Indian Penal Code, it has to be established not only that he has cheated someone but also that by doing so he has dishonestly induced the person, who was cheated to deliver any property etc. A person can be said to have done a thing dishonestly if he does so with the intention of causing wrongful gain to one person or wrongful loss to another person. Wrongful loss is the loss by unlawful means of property to which a person is entitled while wrongful gain to a person means a gain to him by unlawful means of property to which the person gaining is not legally entitled. These are the two facets of the definitions of dishonesty. The allegations made in the report neither make out any basis for either of the requirements.
54. In F.I.R. 6/90, there is nothing in the report to suggest that the petitioner had engaged a carpenter. Even the entire record nowhere points out that any order has been passed engaging Maghi Ram. Maghi Ram, in fact, on retirement from C.P.W.D. has admittedly worked in the Council as a carpenter on part time basis. The allegations appear to be that for one year, he did not work for which bill for arrears of pay was prepared and payment was made to him. Neither payment has been made by the petitioner, nor the petitioner has certified carrying out of the work by Maghi Ram. Maghi Ram does not dispute his signatures on the pay bill. The role played by the petitioner in the report is not highlighted. The essentials of the offences alleged are totally lacking in the report. In Anil Kumar Bose v. State of Bihar, , it was held that for the purpose of holding the accused guilty under Section 420 of the Indian Penal Code, evidence adduced must establish, beyond reasonable doubt, mens rea on the part of the accused. In the instant case, the allegations are that bill for arrears of pay was prepared by Lekh Ram, Clerk and ultimately payment of that bill was made and Maghi Ram has admitted signatures on pay bill. As noticed above, neither there is any order by the petitioner appointing Maghi Ram as carpenter, nor it is shown that the petitioner knew Maghi Ram and that payment to Maghi Ram was or was not in her presence by the said Clerk. Maghi Ram admitted that as a part time carpenter, he has been engaged in the Council. As has been highlighted by Lachhman Singh Bhatia in his complaint that the petitioner engaged herself in other activities and from her the bills etc. were got signed in a routine manner. In these circumstances, the possibility cannot be ruled out of getting the petitioner's signatures in a routine manner on the pay bill. As noticed in Anil Kumar Bose's case (supra) in the absence of anything on record to point out any mens rea on the part of the petitioner, the petitioner cannot be said to be concerned with the commission of the alleged offences.
55. F.I.Rs. Nos. 7/90, 9/90, 10/90 and 11 / 90 related to mere non-performance of the instructions and guidelines applicable to the Government departments. Assuming that there has been some irregularity either in making purchases or in execution of a contract or in procurement of certain other goods by not following Government rules and assuming that such Government rules or regulations are applicable to the Council, no conviction can be recorded unless it is shown that disregard to the alleged instructions, rules or regulations amount to any offence. In Abdulla Mohammed Pagarkar v. State (Union Territory of Goa, Daman and Diu), , the apex Court dealt with a case in which a public servant and a contractor were prosecuted under the Prevention of Corruption Act and Sections 420, 468 and 471 of the Indian Penal Code for defrauding the Government by submitting false bills of the work done. Though the work was to be done depart-mentally it was alleged that in fact the public servant got the work done through the contractor, whose tender was not accepted. It was further held that though the work Was got executed in flagrant disregard of the relevant Rules and even of ordinary norms of procedural behaviour of governmental officials and contractors, such disregard did not amount to any of the offences alleged against them. The onus of proof of the existence of every ingredient of the charge always rests on the prosecution and never shifts. It was incumbent therefore on the State to bring out, beyond all reasonable doubt, that the number of labourers actually employed in carrying out the work was less than that stated in the summaries appended to the bills paid for by the Government. The accused could not be convicted relying on the mere impression of the prosecution witnesses regarding the number of labourers employed from time to time. No doubt there were several irregularities giving rise to a strong suspicion in regard to the bona fides of the accused in the matter of the execution of the work but suspicion, however strong, could not be a substitute for proof. And it was not permissible to place the burden of proof of innocence on the person accused of a criminal charge.
56. There is also allegation in F.I.R. No. 8/90 that petitioner misused her position in making recruitment and enrolment of 186 persons within the last 12 years without sending any requisition to the Employment Exchanges or without adhering to the policy of reservation. It is not shown that in the matter of recruitment, Council is enjoined upon the duty to follow Government rules or regulations. We may point out that the Constitution of the Council empowers and authorises the Standing Committee for its day-to-day functioning and the executive Committee is empowered to authorise the General Secretary to incur recurring expenditure and also to make recruitments. The General Secretary is responsible to the Executive Committee for his functions and it is the Executive Committee, which is charged with the management of all the properties of the Council. The financial powers of the Council including receipts and expenditures are to be exercised by the Standing Committee, in such a manner, as may be prescribed by the Executive Committee. Nowhere in the Constitution, it is provided that in the matter of recruitment, Council will be bound by the Government instructions. Scope of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 was considered in Union of India v. N. Hargopal, , in which it was held that the Act does not oblige any employer to employ those persons only who have been sponsored by the Employment Exchanges and that while the Government is at perfect liberty to issue instructions to its own Departments and its organisation a for filling up the vacancies by notifying the same in Employment Exchanges, but the instructions cannot bind other bodies which are created by the statutes and which function under the authority of the statutes. In para 9, the Court held:
"It is clear that it is the desire of the Government of India that all Government Departments, Government Organisation and statutory bodies should adhere to the rule that not merely vacancies should be notified to the employment exchanges, but the vacancies should also be filled by the candidates sponsored by the employment exchanges. It was only when no suitable candidates were available, then other sources of recruitment were to be considered. While the Government is at perfect liberty to issue instructions to its own departments and organisations provided the instructions do not contravene any constitutional provision or any statute, these instructions cannot bind other bodies which are created by statute and which function under the authority of statute. In the absence of any statutory prescription the statutory authority may however adopt and follow such instructions if it thinks fit. Otherwise, the Government may not compel statutory bodies to make appointments of persons from among candidates sponsored by employment exchanges only. The question, of course, does not arise in the case of private employers which cannot be so compelled by any instructions issued by the Government."
57. In so far as F.I.R. No. 38/91, which is registered as Police Station, Shimla East is concerned, the affidavit of Mr. S. S. Chandel, Director, Social and Women's Welfare, Himachal Pradesh, sworn on 6th April, 1993, which is at page 326 of the paper book, there is a clear and categorical statement that the Government of Himachal Pradesh has decided not to grant prosecution sanction against the petitioner. This position was also not contravened by the learned Counsel for respondent No. 1 at the time when the matter came up for final hearing. In view of the Government having decided not to grant prosecution sanction in case of the petitioner, it will serve no useful purpose to discuss in detail the allegations.
58. Even with regard to F.I.R. No. 9/90 in the affidavit of Mr. Attar Singh, Financial Commissioner-cum-Secretary (Home), it has been stated that in this case it was found misfit for launching prosecution in the Court of law and consequently on the advice of Law Department, prosecution sanction was not accorded.
59. On a reference to various allegations made in the reports, we find that on the face of it, the allegations made therein are general and vague in nature and even if the same are accepted on its face value, no cognizable offence, at least against the petitioner, who has been holding the position as the General Secretary in the Council is made out. Adequate precautions were not taken before getting registered the cases involving the petitioner, such as holding of preliminary enquiry, as envisaged in P. Sirajuddin's case (1971 Cri LJ 523) (SC) (supra). Had preliminary enquiry been conducted, as in ordinary departmental proceedings against a Government servant, charged with delinquency is done by taking down statement of the petitioner, alleged to be involved in the matter and to examine the documents, namely, Constitution of the Council and its proceedings, which clearly state that all alleged actions of the petitioner have been duly approved by the Executive Committee, having bearing on the issues involved, which are the barest safeguards provided in P. Sirajuddin's case (supra), the unnecessary harassment to the petitioner could have been avoided. It appears that with a preconceived idea of guilt of the petitioner, who had not at all been named in the complaint, the cases were registered, by totally brushing aside the normal procedure, which follow in such like cases.
60. In view of the aforementioned discussion, we allow the writ petition and quash all the proceedings as also the cases against the petitioner under F.I.Rs. Nos. 5 to 11 of 1990 registered at Police Station, Anti-Corruption Zone, Shimla and F.I.R. No. 38 of 1991 registered at Police Station, Shimla East.
61. Costs on parties.